Video recording of workplace events; admissibility

In Chappell v Griffin Coal Mining Company Pty Ltd (2016) FCA 1248 Mckerracker J of the Federal Court held that a video recording of conduct by an employee when the employee was unaware that his conduct was being recorded in that manner should not be capable of being used by the employer to support disciplinary proceedings. The decision is largely based upon the terms of the Western Australian Surveillance Devices Act and it remains to be seen how useful a precedent it is in the context of workplace conduct which occurs in other States.
It is also important to note that the decision arises from the recording of a conversation to which the person affected by the potential conduct was not a party.
“It is an offence under the Surveillance Devices Act to use or cause to be used a listening device to record a private conversation to which that person is not a party (by virtue of s 5(1)(a)), or to use or cause to be used an optical surveillance device to record visually or observe a private activity in which that person is not a party (s 6(1)(a)) and/or to knowingly publish or communicate a private conversation or a report or record of a private conversation or private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device (by virtue of s 9(1)).
In Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266, Sulan J observed, in relation to the equivalent legislation in South Australia, which also uses the expression ‘private conversation’, that the ordinary meaning of the term conversation is “an informal interchange of thoughts by spoken word”. His Honour said (at [29]-[35]) (footnotes omitted):
The ordinary meaning of the term “conversation” as defined in the Macquarie Dictionary is:
1. informal interchange of thoughts by spoken words; a talk or colloquy.
2. an instance of this.
3. association or social intercourse; intimate acquaintance.
4. Archaic behaviour, or manner of living. [Middle English, from Old French, from Latin conversation frequent use, intercourse].
30 Counsel for Alliance submits that the Act does not prohibit the recording of private “communications” but only “private conversations”. Counsel contends that not all communications are conversations.
31 I agree. Although the conversation in the Act should not be given a restricted meaning, the communication should have the characteristics of a conversation which includes a degree of informality and would not normally apply to the proceedings of a committee.
32 Proceedings which take place at the Management Committee meetings are of an entirely different character to a “private conversation”. They have a commercial character and purpose. Each party to the joint venture is a body corporate which acts through representatives or agents, who have a duty to report to the corporation. The exchanges at meetings do not have the required characteristics of a conversation. Meetings have formal written agendas upon which the parties exchange positions orally and in writing, including the provision of reports. The parties seek to reach decisions that will affect the legal rights and duties of the parties to the joint venture. A formal record is kept of the meeting. There is a formality about meetings of the joint venture. Statements made and positions taken orally by those entitled to speak at the meeting cannot be said to be conversations in the ordinary meaning of that word.
33 As to the question of whether the communication is private, Alliance submits that a final determination of privacy involves reference to whether or not the communication is desired to be confined to the parties to the communication. Counsel for Alliance submits that the parties simply could not have intended the communication to be private given that each representative present has, to the knowledge of the other, a duty to report the communications to his or her principal. Counsel for Quasar submits that the content of the discussions at the meetings was and is highly confidential material, protected by a confidentiality clause in the JVA. It is contended that the term “private conversation” should not be given a narrow meaning having regard to the objects of the Act, and that it should not be construed to exclude conversations of a business or employment nature.
34 I have had regard to the remarks of Doyle CJ in Thomas who observed at [36]-[38]:
The definition of “private conversation” indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.
A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.
There is no reason to give a narrow meaning to the concept of “private conversation”, bearing in mind the objects of the Act. There is no need to trace the precise limits of the concept of a private conversation. I am satisfied that each of the conversations was a private conversation, in the sense that the circumstances indicated that the participants other than Mr Nash wished the actual conversation to be confined to the known participants.
35 The fact that each representative has a duty to report back to their respective principals would not alter the private nature of the verbal discussions which take place during the Management Committee meetings. As observed by Doyle CJ in Thomas, a conversation will be private even though the participants are at liberty to tell others about it later. It is clear that the nature of the communications which take place at the meetings are of a confidential nature and are private in the sense that they are “not public”.
In Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 Allanson J considered the differences between the Surveillance Devices Act and the Listening and Surveillance Devices Act 1972 (SA) (at [11]-[12]). His Honour said that the definition of private conversation in each Act is not the same. The South Australian Act, in s 3 defines private conversation to mean:
any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.
In contrast, the Surveillance Devices Act defines a private conversation as:
any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
In any event, Allanson J opined (at [13]), and I agree, the expression ‘private conversation’ in the context of the Surveillance Devices Act is not intended to impose a limitation. The function of a definition is not to enact substantive law, but to provide aid in construing the statute. As his Honour noted, McHugh J said in Kelly v R [2004] HCA 12; (2004) 218 CLR 216 (at [103]):
Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment -in its extended or confined sense -in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.
Justice Allanson also observed (at [14]) that the Surveillance Devices Act prohibits two sorts of activity: the use of listening devices to record, monitor or listen to private conversations or words spoken in a private conversation, and the use of optical surveillance devices to record visually or observe a private activity. The two strands are intended to act together and be comprehensive. The definition of private activity has no limitation to informal activity. The evident aim of both strands is to protect privacy, whether formal or informal. For example, it would not be open for a business competitor to legally install a concealed listening device to listen in to or record a meeting intended to be private, although formal.
In Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246, Owen J said (at [18]-[20]):
… In all cases it will be necessary to look at the circumstances as a whole. Obviously, the location and physical environment in which the incident takes place will be of great significance in deciding what the parties expected and, with the degree of objectivity that the word “reasonably” imports, should have expected. In my view, persons contemplating the use of a surveillance device in these circumstances should exercise caution before concluding that because the incident takes place outside a “building” (assuming that word is meant in the colloquial sense of four walls and a roof) it is not covered by the Act.
19 The second of the issues of construction relates to the extent of the exclusion in the last three lines of the definitions of “private activity” and “private conversation” respectively. Something is not a private conversation or private activity if the parties to it ought reasonably to expect that the conversation or activity may be overheard or observed. It is to be noted that the test here is largely objective. The problem arises because of the word “parties” (plural) in the exclusionary provision. The first part of the definition refers to “any of the parties”. The test under the first part is primarily subjective, that is, the person must actually hold that desire, although the circumstances must also be such as to make the indication of desire “reasonable”. Thus, if the circumstances reasonably indicate that any one or more, but not necessarily all, of the parties desired that the incident be observed or heard only by the principal parties, that is enough to satisfy the first part of the definition. But I do not think that the use of the word “parties” (plural) in the exclusionary provision means the definition cannot be satisfied unless all of the parties ought reasonably to have intended the incident to be restricted to themselves. It may well be the case that one of the parties (being the one who is wearing the device) knows full well that the incident is being observed or listened to by third parties. I think the term “parties” in the exclusionary provision refers primarily to the person who comes within the phrase “any party” in the earlier part of the definition but may extend to other parties as well. The words of the exclusionary provision reinforce the need for objective, as well as subjective, considerations in drawing the appropriate inferences.
20 This is an important consideration. If the circumstances are such that the exclusionary provision applies the incident would not be covered by Pt 5. Accordingly, but subject to all of the other provisions of the Act and the law generally, the material could be recorded and published without the need for an order of the Court. However, once again I think the exclusionary provision is of somewhat limited operation and careful consideration needs to be given to it.
(emphasis added)……
In my view, Mr Chappell is entitled to injunctive relief to restrain usage of the recording. This does not mean that the respondent cannot proceed with its consideration of Mr Chappell’s conduct and whether the circumstances require any action in respect of that conduct. There is an undertaking in existence in these terms: until further order of the Court the respondent (whether by its officers, delegates, agents, employees or other representatives) will not:
(a) use an audiovisual recording of a conversation between Wayne Chappell and a ranger from the Shire of Collie recorded on 23 June 2016 (the video footage); and
(b) conduct (or continue to conduct) or take any further steps in any disciplinary inquiry or process into the conduct of Wayne Chappell on 23 June 2016 based upon the video footage or otherwise; and
(c) terminate the employment of, or take any other disciplinary action against, Wayne Chappell in reliance on the video footage or otherwise.”